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WARD v. HARTE

May 21, 1992

MAUREEN WARD, Plaintiff,
v.
SEAN HARTE, Defendant.



The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, Chief Judge

 Plaintiff in this action to recover damages for housing discrimination based on the Fair Housing Act, 42 U.S.C. § 3601 et seq., (the "FHA"), and for claimed violations of 42 U.S.C. §§ 1981 and 1982, moves for partial summary judgment on liability, on the basis of collateral estoppel. Defendant opposes the motion, and the motion was marked fully submitted on April 21, 1992. The decision of the Court is set forth below.

 Plaintiff Maureen Ward and her husband Tom Ward are residents of Rockland County, New York. Both Wards are White. The Wards have two natural children, Maureen and Tracy, as well as an adopted child, Andrew, who is Black. On April 15, 1990, plaintiff entered into a residential lease agreement with defendant Sean Harte. The agreement is a standard one-year lease for a house located at 7 Griffith Avenue in Stony Point, New York. Defendant Harte's home is apparently located on the same tract of land as the house rented to the Wards.

 On April 3, 1991, the plaintiff filed a housing discrimination complaint against the defendant with the Fair Housing Board of Rockland County, claiming that the defendant had violated the Fair Housing Law of Rockland County. On July 29, 1991, the Board, which consists of five persons appointed by the County Legislature from the membership of the Rockland County Commission on Human Rights, held a hearing on the matter. The defendant was represented by counsel, and Mr. Ward, Mrs. Ward, Mr. Harte and Mrs. Harte all testified at that hearing.

 Without restating the entire contents of that administrative hearing, it is clear that some tension developed between these two families during the course of the Wards' tenancy. In plaintiff's view, defendant Harte and his wife discriminated against the Wards based on their son's race. For example, plaintiff claims that on the first day of the Wards' tenancy, Harte came to their home and, on seeing Andrew, stated "I hope you're babysitting this one". Complaint at P6. Also, plaintiff claims that Harte "denied his children permission to play with Andrew, although he allowed his children to play with plaintiff's Caucasian children". Complaint at P7. As a result of defendant's racial bias, the plaintiff contends, the defendant refused plaintiff's request of February 15, 1991 to renew the lease, and likewise declined plaintiff's subsequent offer to purchase the property.

 Defendant's version of events is rather different. As the defendant testified at the Fair Housing Board hearing in this matter:

 
"Okay. To start off with anyway, insofar as Andy is concerned, we had absolutely no problem with Andy and the renting of the house or selling of the house or anything else. We were very well aware of the fact that Andy existed at the time that we gave them the lease. My problem with the Ward family had nothing to do with Andy period".
 
"It was to do with how they took care of the property and how they took care of the house. It was in the lease that they would cut the grass, they would maintain the property. It was in the lease that there wouldn't be any cars parked outside the premises. They violated practically everything in the lease. They never raked the leaves, cut the grass. They had a dog on the lawn that was making holes all over the place. Around October, November, they had a car that obviously broke down. Tow truck brought it, dropped it in front of the house, they took the plates off it and left it sit there until after the time they had moved out. They were moved out at least a week when the tow truck from Keahon, that picks up scrap cars, came and removed the car". Exhibit D to Sapir Affidavit at 51-52.

 Defendant also testified about persistent plumbing problems at the Wards' home, as well as the fact that he had previously attempted to rent the house to a Filipino individual whose wife is Asian. *fn1" As for plaintiff's specific charges, defendant essentially conceded that he made a remark about Andrew, but claims that he was concerned only that "if they intend to adopt him, they could intend to adopt 20 other kids. So I didn't want them to use the house commercially as an adoption center or whatever". Tr. at 61. The defendant also acknowledged that his wife often did not permit his children to play with Andrew, but did so, he states, because "Andy had a habit of throwing rocks". Tr. at 59. Finally, defendant also claimed that he would have permitted the Wards to stay until June, but that the Wards failed to contact him about this option. Tr. at 67.

 The Board rendered its opinion and findings on August 21, 1991, and that opinion states in pertinent part:

 
"The Fair Housing Board concludes that the motivation for refusing to lease and/or sell the house to the Complainant [Mrs. Ward] was a result of his knowledge that the Complainant's son was black".
 
"On the basis of the evidence, the Board believes that the sole and compelling reason for the failure to renew the lease with the Complainant was because of the racial background of the Complainant's black adopted child". Exhibit E to Sapir Affidavit at 2.

 Armed with this finding, the plaintiff filed this suit on November 1, 1991, alleging discrimination in violation of the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. and 42 U.S.C. §§ 1981 and 1982. By motion dated March 23, 1992, she moved for summary judgment on liability, on the theory that the defendant is collaterally estopped by the Fair Housing Board's determination that he discriminated against the plaintiff on the basis of her son's race.

 Legal Analysis

 The doctrine of issue preclusion, or collateral estoppel, bars relitigation of issues necessarily decided in prior proceedings. See generally Restatement (Second) of Judgments §§ 27, 29 (1982). In this Circuit, the following criteria must be satisfied before issue preclusion applies:

 
"(1) the issues in both proceedings must be identical, (2) the issue in the prior proceedings must have been actually litigated and decided, (3) there must have been a full and fair opportunity for the litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits". Beck v. Levering, 947 F.2d 639, 642 (2d Cir. 1991) (per curiam) (quoting Gelb v. Royal Globe Insurance Co., 798 F.2d 38, 44 (2d Cir. 1986), cert. denied, 480 U.S. 948, 94 L. Ed. ...

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